Lee v Archer - [2012] NZHC 3308

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-002048 [2012] NZHC 3308

BETWEEN SUSAN MARGARET LEE Plaintiff

ANDBRODIE JANE ARCHER Defendant

Hearing: 3 December 2012

Appearances: J M Kirkland for Plaintiff
S P Rennie for Defendant

Judgment: 7 December 2012

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] The defendant, Ms Archer, is the daughter of the late K G Cummings, who died on 2 August 2012 without leaving a will. On 13 August 2012 Ms Archer swore an affidavit in support of an application for Letters of Administration in his estate. In that affidavit she stated in paragraph 7:

7. At the time of his death, my father was a widower and was not living in a de facto relationship.

[2] The plaintiff, Ms Lee, says that statement was false, and has issued this proceeding for an order that the grant of Letters of Administration on Intestacy made by the Registrar of this court on 14 October be recalled.

[3] Rule 27.35 of the High Court Rules sets out the order of priority of those who may apply for a grant of administration on an intestacy. Ms Lee says that contrary to the sworn statement of Ms Archer, she was the de facto partner of Mr Cummings at the time of his death, and accordingly is the person with first priority to apply for and be granted Letters of Administration. It is common ground that if Ms Lee was the de
facto partner of Mr Cummings when he died, she does have first priority to apply for

SUSAN MARGARET LEE V BRODIE JANE ARCHER HC CHCH CIV-2012-409-002048 [7 December 2012]

Letters of Administration. In this proceeding she does not seek to do so; she confines the relief she seeks to an order recalling the present grant of administration to Ms Archer because of the statement Ms Archer made in her affidavit.

[4] The issues in this case are:

a) Can Ms Lee proceed by way of an application for summary judgment?

b) If Ms Lee was the de facto partner of Mr Cummings when he died, does the Court have jurisdiction to recall the grant of Letters of Administration to Ms Archer?

c) Was Ms Lee the de facto partner of Mr Cummings when he died, so that the sworn statement of Ms Archer is false?

d) If the answers to issues a), b) and c) are affirmative, should the Court make an order as sought, or decline to do so in the circumstances of this case?

Can Ms Lee proceed by way of an application for summary judgment?

[5] Ms Lee has applied for summary judgment on the issues raised in this case. Judgment can only be entered on this basis if Ms Lee can satisfy the Court that Ms Archer does not have a defence to the claim.1 This procedure is not usually suitable for the determination of contested issues of fact. In Attorney-General v Rakiura Holdings Ltd,2 Greig J said:

In a matter such as this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lee v Archer

Details

AGLC: Lee v Archer [2012] NZHC 3308
Case: [2012] NZHC 3308
Decision Date: 7 December 2012

CaseChat Overview and Summary

The case of Lee v Archer [2012] NZHC 3308 was heard before Associate Judge Matthews in the High Court of New Zealand. The plaintiff, Ms Lee, sought an order recalling the grant of Letters of Administration on Intestacy made to the defendant, Ms Archer, on the basis that Ms Archer had made a false statement in her affidavit. The primary issue was whether Ms Lee was the de facto partner of the deceased, Mr Cummings, at the time of his death, which would entitle her to apply for Letters of Administration in priority to Ms Archer. The court considered whether Ms Lee could proceed by way of an application for summary judgment, if it had jurisdiction to recall the grant, and if Ms Lee was the de facto partner of Mr Cummings. The court found that Ms Lee could proceed by way of summary judgment, and that it had jurisdiction to recall the grant of Letters of Administration based on a false suggestion in Ms Archer's affidavit. The court concluded that Ms Lee and Mr Cummings were in a de facto relationship at the time of his death, and thus Ms Archer's affidavit was false. The court exercised its discretion to recall the grant of Letters of Administration and ordered Ms Lee to receive costs on a 2B basis.

Orders